113 Hillside Avenue Corp. v. Zaino

• Decision Date: 20 May 1968
• Citation: 30 A.D.2d 559,291 N.Y.S.2d 188
• Parties: In the Matter of 113 HILLSIDE AVENUE CORP., Respondent, v. Lawrence F. ZAINO et al., Constituting the Board of Appeals of the Incorporated Village of Westbury, Appellants. Second Department
• Court: New York Supreme Court — Appellate Division

Page 188

291 N.Y.S.2d 188

30 A.D.2d 559

In the Matter of 113 HILLSIDE AVENUE CORP., Respondent, v. Lawrence F. ZAINO et al., Constituting the Board of Appeals of the Incorporated Village of Westbury, Appellants.

Supreme Court of New York, Appellate Division,

Second Department.

May 20, 1968.

Milton Pinkus, Hempstead, for petitioner-respondent.

Robert D. Kops, Mineola, for respondents-appellants.

Before BELDOCK, P.J., and CHRIST, BRENNAN, HOPKINS and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding under article 78 of the CPLR, the Board of Appeals of the Incorporated Village of Westbury appeals from a judgment of the Supreme Court, Nassau County, dated October 17, 1967, which (1) annulled the Board's denial of petitioner's application for an area variance and (2) directed that the variance be granted.

Judgment reversed, on the law and in the exercise of discretion, without costs, and matter remitted to the appellant Board for a new hearing, at which the proof may be considered in the light of the principles of law enunciated in Matter of Fulling v. Palumbo, 21 N.Y.2d 30, 286 N.Y.S.2d 249, 233 N.E.2d 272, which was decided on December 7, 1967, subsequent to the decision herein of the learned Special Term. No questions of fact were considered on this appeal.

In view of the determination in Fulling (supra) and in view of the Board's request that, if its determination be not sustained by this court, the matter be remitted to it for a new hearing in accordance with the principles of law enunciated in Fulling (supra), the interests of justice require such remission.